Citation Nr: 0935827
Decision Date: 09/22/09 Archive Date: 10/02/09
DOCKET NO. 08-24 890 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an award of special monthly compensation
(SMC) based on a need for aid and attendance or on account of
being housebound.
2. Whether the Veteran was paid the correct initial amount
for a spouse in need of aid and attendance.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
David Traskey, Associate Counsel
INTRODUCTION
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The Veteran had active service from December 1940 to November
1945.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a decision of September 2007 by the
Department of Veterans Affairs (VA) St. Petersburg, Florida,
Regional Office (RO).
The Board notes that there is a single Spanish document
associated with the claims file that has not been translated.
However, the Board notes that this document, a marriage
certificate, has no bearing on the issues currently on
appeal.
The Veteran also raised the claims of entitlement to payment
or reimbursement for his children's educational expenses, as
well as other legal and medical expenses dating back to 1984.
The Board refers these issues to the RO for any appropriate
action.
The issue of entitlement to SMC based on a need for aid and
attendance or on account of being housebound is addressed in
the REMAND portion of the decision below and is REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. The Veteran is service-connected at 100 percent for
arteriosclerotic heart disease, status-post myocardial
infarction associated with nicotine dependence, effective
February 11, 1994. He is also service-connected for
residuals of malaria, syphilis, and nicotine dependence and
was assigned a non-compensable evaluation for each of these
disabilities.
2. The Veteran was awarded additional benefits based on his
dependent spouse being in need of aid and attendance
benefits, effective April 16, 2007.
3. According to VA's Compensation Rate Table, effective
December 1, 2006, a Veteran service-connected at 100 percent
with a dependent spouse is entitled to $2,610. An additional
$126 is awarded if a dependent spouse is in need of aid and
attendance, for a total monthly rate of $2,736.
4. The Veteran was paid $2,736, effective May 1, 2007, the
correct initial amount for a Veteran service-connected at 100
percent with a dependent spouse only in need of aid and
attendance.
CONCLUSION OF LAW
The Veteran was paid the correct initial amount for a spouse
in need of aid and attendance. 38 U.S.C.A. § 1114, 1115
(West 2002) (amended by P.L. 109-361, § 2, 120 Stat. 2062,
effective December 1, 2006); 38 C.F.R. § 3.21 (2008);
Veterans Benefits Administration Manual, M21-1, Part I,
Appendix B, effective December 1, 2006.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran in this case contends that he was initially paid
the incorrect amount for a spouse in need of aid and
attendance. In particular, the Veteran alleges that $126,
the amount paid for a spouse in need of aid and attendance at
the time that the Veteran filed the current claim, is
insufficient to "take care of life threatening situations .
. ." See October 2007 notice of disagreement (NOD).
Here, the Veteran is service-connected at 100 percent for
arteriosclerotic heart disease, status-post myocardial
infarction associated with nicotine dependence, effective
February 11, 1994. He is also service-connected for
residuals of malaria, syphilis, and nicotine dependence. The
Veteran was assigned a non-compensable evaluation for each of
these disabilities.
The RO received the Veteran's claim for spousal aid and
attendance benefits in April 2007 and granted the benefit
sought in the September 2007 rating decision currently on
appeal, effective April 16, 2007. The Veteran filed a timely
NOD thereafter and perfected this appeal following the
issuance of a June 2008 statement of the case.
The monetary rates of compensation are published in tabular
form in Appendix B of the Veterans Benefits Administration
Manual M21-1 and are to be given the same force and effect as
if published in the Code of Federal Regulations. See 38
C.F.R. § 3.21 (2008).
According to VA's Compensation Rate Table, effective December
1, 2006, a Veteran service-connected at 100 percent with a
dependent spouse only is entitled to $2,610. An additional
$126 is awarded for a dependent spouse in need of aid and
attendance for a total monthly rate of $2,736 ($2,610 +
$126). See M21-1, Part I, Appendix B, effective December 1,
2006.
Effective December 1, 2007, a Veteran service-connected at
100 percent with a dependent spouse only is entitled to
$2,669. An additional $129 is awarded for a dependent spouse
in need of aid and attendance for a total monthly rate of
$2,798 ($2,669 + $129). See M21-1, Part I, Appendix B,
effective December 1, 2007.
Since the RO received the Veteran's claim for spousal aid and
attendance benefits prior to December 1, 2007 (i.e., April
16, 2007), the monetary rates effective December 1, 2006
apply in the instant case. It is essentially undisputed in
this case that the Veteran is service-connected at 100
percent arteriosclerotic heart disease, and that he claims
his spouse as his only dependent. It is also undisputed that
the Veteran's spouse was awarded aid and attendance benefits,
effective April 16, 2007. See September 2007 rating
decision.
Associated with the Veteran's claims file is VA Form 21-8947,
a Compensation and Pension Award Statement. This statement
contains a variety of information about the Veteran including
his name, his spouse's name, his dates of service, level of
disability, net monthly rate of payment, and the effective
date of that payment. In this case, the VA Form 21-8947
associated with the Veteran's claims file showed that he had
active service from December 1940 to November 1945. The
statement also indicated that the Veteran was 100 percent
disabled and it listed the Veteran's spouse's name as well.
Importantly, a notation on the statement showed that the
Veteran's net monthly rate was $2,736, effective May 1, 2007.
As noted above, VA's Compensation Rate Table makes clear
that, effective December 1, 2006, a Veteran service-connected
at 100 percent with a dependent spouse only is entitled to
$2,610. An additional $126 is awarded for a dependent spouse
in need of aid and attendance for a total monthly rate of
$2,736 ($2,610 + $126). See M21-1, Part I, Appendix B,
effective December 1, 2006.
Given the evidence of record, therefore, the Board finds that
the evidence shows that the Veteran was paid the correct
amount for a spouse in need of aid and attendance. The
Veteran in this case was entitled to an initial net monthly
rate of $2,736 and was paid that amount. The amount paid
includes the compensation rate for a Veteran service-
connected at 100 percent with a dependent spouse only
($2,610) as well as additional money ($126) for a dependent
spouse in need of aid and attendance. Accordingly, the
Veteran was paid the correct initial amount for a spouse in
need of aid and attendance, and therefore, the claim must be
denied.
The Board is also aware that the Veteran in this case alleges
that the amount paid for a dependent spouse in need of aid
and attendance at the time that the Veteran filed the current
claim ($126) is insufficient. While the Board is sympathetic
to the seriousness of the Veteran's spouse's condition and
the expensive nature of her treatments, the amount paid for a
dependent spouse in need of aid and attendance is set by
Congress and adjusted yearly taking into account cost-of-
living increases. The Board lacks the authority to alter the
amount paid in such circumstances, regardless of the needs of
particular Veterans or their concerns that the amount paid is
insufficient to cover necessary expenses. Accordingly, the
appeal must be denied.
Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist Veterans in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
Veteran and his representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper notice from VA must inform the Veteran of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the Veteran is expected to provide. This notice
must be provided prior to an initial unfavorable decision on
a claim by the agency of original jurisdiction (AOJ).
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The Board further observes that during the pendency of this
appeal, on March 3, 2006, the Court issued a decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006), which held that the VCAA notice requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to
all five elements of a service connection claim. Those five
elements include: (1) Veteran status; (2) existence of a
disability; (3) a connection between the Veteran's service
and the disability; (4) degree of disability; and (5)
effective date of the disability.
In this case, VCAA notice is not required because the issue
presented involves a claim that cannot be substantiated as a
matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430
(1994) (where the law and not the evidence is dispositive the
Board should deny the claim on the ground of the lack of
legal merit or the lack of entitlement under the law);
VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to
provide notice of the information and evidence necessary to
substantiate a claim where that claim cannot be substantiated
because there is no legal basis for the claim or because
undisputed facts render the claimant ineligible for the
claimed benefit).
ORDER
The Veteran was paid the correct initial amount for a spouse
in need of aid and attendance, therefore, the appeal is
denied.
REMAND
The Veteran in this case also contends that he is entitled to
SMC based on a need for aid and attendance or on account of
being housebound. The Veteran is service-connected at 100
percent for arteriosclerotic heart disease, status-post
myocardial infarction associated with nicotine dependence,
effective February 11, 1994. He is also service-connected
for residuals of malaria, syphilis, and nicotine dependence.
The Veteran was assigned a non-compensable evaluation for
each of these disabilities.
SMC is payable to a Veteran who, as a result of his service-
connected disabilities, is so helpless as to need or require
the regular aid and attendance of another person. 38
U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b)(3)
(2008). Under 38 C.F.R. § 3.351(c), a Veteran will be
considered in need of regular aid and attendance if he: (1)
is blind or so nearly blind as to have corrected visual
acuity of 5/200 or less, in both eyes, or concentric
contraction of the visual field to five degrees or less; (2)
is a patient in a nursing home because of mental or physical
incapacity; or (3) establishes a factual need for aid and
attendance under the criteria set forth in 38 C.F.R. §
3.352(a). 38 C.F.R. § 3.351(c).
The following criteria will be considered in determining
whether the Veteran is in need of the regular aid and
attendance of another person: the inability of the Veteran to
dress or undress himself, or to keep himself ordinarily clean
and presentable; frequent need of adjustment of any special
prosthetic or orthopedic appliances which, by reason of the
particular disability, cannot be done without aid (this will
not include the adjustment of appliances which normal persons
would be unable to adjust without aid, such as supports,
belts, lacing at the back, etc.); the inability of the
Veteran to feed himself through the loss of coordination of
upper extremities or through extreme weakness; the inability
to attend to the wants of nature; or incapacity, physical or
mental, which requires care or assistance on a regular basis
to protect the Veteran from the hazards or dangers incident
to his daily environment. 38 C.F.R. § 3.352(a).
Also, under this section, "bedridden" status will be a proper
basis for the determination of the need for regular aid and
attendance. For the purposes of this section, "bedridden"
means that condition which, through its essential character,
actually requires that the Veteran remain in bed. The fact
that the Veteran has voluntarily taken to bed or that a
physician has prescribed rest in bed for the greater or
lesser part of the day to promote convalescence or cure will
not suffice. Id.
It is not required, however, that all of the disabling
conditions enumerated be present before a favorable rating
may be made. The particular personal functions which the
Veteran is unable to perform should be considered in
connection with his condition as a whole, and the need for
aid and attendance must be regular, not that there be a
constant need. 38 C.F.R. § 3.352(a).
In order to qualify for housebound benefits, the controlling
law and regulations require that the Veteran have a single
disability ratable at 100 percent disabling as a prerequisite
to such benefits. The Veteran must also have (1) an
additional disability or disabilities independently ratable
at 60 percent or more, separate and distinct from the
permanent disability rated as 100 percent disabling and
involving different anatomical segments or bodily systems; or
(2) be permanently housebound by reason of disability or
disabilities. 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. §
3.350(i) (2008).
The "permanent housebound" requirement will be considered to
have been met when the Veteran is substantially confined to
his dwelling and the immediate premises or, if
institutionalized, to the ward or clinical area due to a
disability or disabilities, and it is reasonably certain that
the disability or disabilities and the resultant confinement
will continue throughout his lifetime.
VA has a duty to assist Veterans to obtain evidence needed to
substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 §
C.F.R. § 3.159 (2008). This duty to assist includes
providing a thorough and contemporaneous medical examination.
Green v. Derwinski, 1 Vet. App. 121, 124 (1991).
Associated with the claims file is a July 2007 medical
statement from D. Newsome, M.D. provided in connection with
the Veteran's claim for aid and attendance. The Veteran's
representative indicated in the August 2009 informal hearing
presentation (IHP) that this statement was inadequate for
evaluation purposes because the statement failed to address
the extent to which the Veteran's service-connected
disabilities, particularly the service-connected
arteriosclerotic heart disease, affects his ability to
protect himself from hazards or dangers incident to his daily
environment. See 38 C.F.R. § 3.352(a) (outlining the
criteria for entitlement to aid and attendance benefits).
The Board agrees, especially where, as here, the Veteran
reported a history of impaired mobility (i.e., uses cane or
walker) and fainting. See Veteran's July 2007 statement.
Where, as here, a medical examination does not contain
sufficient detail to decide the claim on appeal, the Board
must return the report as inadequate for evaluation purposes.
See Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Thus, the RO
should schedule the Veteran for a VA examination to determine
his eligibility for SMC based on a need for aid and
attendance or on account of being housebound.
The Veteran also receives medical care through VA. VA is
required to make reasonable efforts to help the Veteran
obtain records relevant to his claim, whether or not the
records are in Federal custody. 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159(c) (2008); Bell v. Derwinski, 2 Vet.
App. 611 (1992). Therefore, the RO should request all
relevant VA medical records pertaining to the Veteran that
are dated from September 13, 2007 to the present.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited
handling is requested.)
1. The RO should contact the appropriate
VA medical facilities and attempt to
obtain relevant medical treatment records
that are dated from September 13, 2007 to
the present.
2. After the above development is
completed, the Veteran should be afforded
a VA examination to determine eligibility
for special monthly compensation based on
the need for aid and attendance or on
account of being housebound. The claims
folder must be made available to the
examiner. The examiner should note in the
examination report that the claims folder
has been reviewed. Any testing should
also be conducted at that time if deemed
necessary by the examiner and the results
of any testing done should be included
with the findings from the VA examination.
The examiner should address in the
examination report whether the following
are present as a result of the Veteran's
service-connected disabilities:
* Inability to dress or
undress himself or to keep
himself ordinarily clean and
presentable;
* Frequent need of adjustment
of any special prosthetic or
orthopedic appliances which
by reason of the particular
disability cannot be done
without aid (this does not
include the adjustment of
appliances which normal
persons would be unable to
adjust without aid, such as
supports, belts, lacing at
the back, etc.);
* Inability to attend to the
wants of nature;
* Inability to feed himself
through loss of coordination
of the upper extremities or
through extreme weakness; or
* Incapacity, physical or
mental, which requires care
or assistance on a regular
basis to protect the Veteran
from hazards or dangers
incident to his daily
environment. See 38 C.F.R.
§ 3.352(a) (2008).
The examiner should indicate whether the
Veteran is "bedridden" (i.e., that the
service-connected disabilities actually
require that the Veteran remain in bed).
The fact that the Veteran has voluntarily
taken to bed or that a physician has
prescribed rest in bed for the greater or
lesser part of the day to promote
convalescence or cure will not suffice.
The examiner should also indicate whether
the Veteran is permanently housebound by
reason of his service-connected
arteriosclerotic heart disease. The
"permanent housebound" requirement will be
considered to have been met when the
Veteran is substantially confined to his
or her dwelling and the immediate premises
or, if institutionalized, to the ward or
clinical area due to a disability or
disabilities, and it is reasonably certain
that the disability or disabilities and
the resultant confinement will continue
throughout his lifetime. The examiner
must provide a complete rationale for any
stated opinion.
3. Thereafter, the RO should readjudicate
the Veteran's claim. If the benefit
sought on appeal remains denied, the
Veteran and his representative should be
provided a Supplemental Statement of the
Case (SSOC). The SSOC must contain notice
of all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable laws and
regulations considered pertinent to the
issue currently on appeal. An appropriate
period of time should be allowed for
response.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
MICHAEL MARTIN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs